Approaching deadlines could lead to decisions in lawsuits over the Brockton power plant lawsuit

Sunday

Jul 27, 2014 at 6:00 AM

There has been little movement on the $68 million civil rights lawsuit until recently.

Staff Reporter

BROCKTON – Developers have been trying to build an electric power generating plant on Oak Hill Way in Brockton for nearly 20 years.

Over the next few months, residents of Brockton and nearby communities could see closure, one way or another, as the two major lawsuits over the proposed 350-megawatt, gas-fired plant are heating up.

One of them, a civil rights lawsuit filed against city officials by the plant developers, is nearing key deadlines for court action. Another, an environmental justice lawsuit filed in opposition to the plant by officials and residents, could see a decision anytime.

“There’s a buzz going on,” said Ed Byers, CEO of Cindy’s Kitchen and organizer of Stop the Power. “Who ever knew we were going to take it this far?”

To get to this point, plant developers, city officials and community activists have traveled a long and contentious path.

By May 2000, brothers Dennis and Leo Barry, owners of the land on Oak Hill Way, had worked with a developer to obtain approvals to build the plant. Financial troubles curtailed the project, however, and six years passed before it was resurrected.

The new effort quickly drew scrutiny from residents of Brockton and West Bridgewater. City leaders fought the project, through the zoning and planning boards, the City Council and at the state level.

Exactly how fiercely the officials fought is the subject of a $68 million federal lawsuit that developers filed in 2012 against the city of Brockton, the City Council, Planning Board and seven present and former officials.

Brockton Power LLC alleges that the officials violated the company’s civil and due process rights when they “orchestrated a scheme to destroy the project” and not allow the development of the owners’ land.

From the time the lawsuit was filed, city leaders have been promising not to back down from an enormous financial threat.

Their resolve faced a new test this week.

Mayor Bill Carpenter on Wednesday distributed documents to city councilors detailing millions of dollars in potential and actual legal fees. The mayor said he presented the “extremely time-sensitive” material so that the councilors would have the latest information on the pending litigation.

On Tuesday, attorneys for both sides of the civil rights lawsuit are scheduled to meet in U.S. District Court in Boston. It would be the first significant movement in the case in more than a year.

The court docket shows a series of rescheduled hearings and pushed back deadlines since last May. There has been no significant discovery in the case, according to several attorneys and clients.

City Solicitor Philip Nessralla said depositions and discovery have not been accomplished “to any major degree.”

Jass Stewart, a city councilor named in the suit, said he has not been interviewed. Ward 6 Councilor Michelle DuBois also said she has not been deposed.

“My attorney for this $68 million frivolous lawsuit has been told nothing,” DuBois said. “It’s frustrating.”

The other individual clients did not respond to requests for comment. Nor did Jonathan Winslow, the power plant project manager, and Thomas Spang, CEO of Advanced Power, the company developing the plant with Siemens Financial Services.

Dennis Barry, owner of the land, could not be reached for comment.

Court deadlines for the civil rights lawsuit are quickly approaching. The deadline to amend pleadings is Aug. 15; the deadline for discovery is Sept. 15, and the deadline for responsive experts and rebuttal is Oct. 15.

Nessralla said the purpose of the Tuesday status conference is to let the judge know where the parties are headed.

“Federal courts don’t like to see cases lie dormant,” he said. “They want to move them along.”

The judge could set a trial date and force the parties into action, or one of the defendants could make a case for summary judgment, which could succeed because of the lack of discovery, said Paul Glickman, an attorney for Stop the Power and partner with the Boston law firm Glickman Turley LLP.

“A civil rights case of this nature is a big deal,” Glickman said. “You have to show your rights were intentionally violated and you can’t do that without having gone through the discovery process.”

The other major pending lawsuit was filed against the developers.

Residents in Brockton and West Bridgewater and both municipalities argue that they have a right under the state’s environmental justice policy “to be protected from environmental pollution and to live in and enjoy a clean and healthful environment.”

That case was argued before the Massachusetts Supreme Judicial Court in March. Lisa Goodheart, an attorney who represented a group of plaintiffs, said the SJC is likely to issue a decision by the end of summer.

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